Imtiyaz Mohammed vs S Santhosh
2021 Latest Caselaw 1276 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21ST DAY OF JANUARY 2021

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.9725 OF 2013(MV)

BETWEEN:

IMTIYAZ MOHAMMED
S/O MOHAMMED KHASIM SAB
AGED ABOUT 52 YEARS
NO.2096, NEAR KYATASANDRA
RAILWAY STATION
TUMKURU DISTRICT.
                                     .. APPELLANT

(BY SRI.G.S.BYRA REDDY, ADV. FOR
SMT. H.C.KAVITHA, ADV. )

AND

1.    S.SANTHOSH
      S/O SOMASHETTY
      AGED ABOUT 23 YEARS
      HULUGUNDI GRAMA
      BELURU TALUK-573116.

2.    SHYLASHRI S.,
      W/O NAGASHETTY
      29 YEARS
      MADIHALLI KOPPALU
      HASSAN TALUK-573201.
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3.   POORNIMA S
     W/O GIRISH
     25 YEARS, R/O K.R. PETEGRAMA
     AMBALI HOBLI
     CHIKKAMAGALUR DISTRICT
     RESPONDENTS NO.1 TO 3 ARE
     PRESENTELY RESIDING AT
     C/O SHIVANNA
     GOWRI KOPPALU
     NEAR ADICHUNCHANAGIRI SCHOOL
     ROAD, VIDYANAGARA,
     HASSAN-573201.

4.   ABDUL SUBBAN @ SUBHAN ABDUL
     S/O ABDUL AJEEJ @ AJEEJ SAB
     35 YEARS, HONNADIKE GRAMA
     GULURU HOBLI
     TUMKURU DISTRICT-572101.

5.   MANJUNATHA
     S/O MANJEGOWDA
     AGED ABOUT 30 YEARS
     THIMMANAHALLI GRAMA
     HULUGUNDI POST
     BELUR TALUK-573 116.

6.   RELIANCE GENERAL INSRANCE CO. LTD.,
     1ST FLOOR, KRUTHIKA ARCADE
     NO.329, 331, NEAR N.R. CIRCLE
     H.N. PURA ROAD,
     HASAN-573201.
                                 ... RESPONDENTS

(BY SRI.H.S.LINGARAJ, ADV. FOR R6:
R1 TO R5 SERVED UN REPRESENTED)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.04.2013 PASSED IN MVC NO. 720/2011 ON
THE FILE OF THE PRINCIPAL DISTRICT JUDGE AND
MEMBER , MACT, HASSAN AWARDING A SUM OF
RS.1,00,000/-WITH INTEREST AT 6% P.A..

     THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the owner of the mini lorry

bearing No.KA-13-1893 being aggrieved by the

judgment dated 30.4.2013 passed by the Motor

Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.3.2010 the deceased

Taranath was coming to their village Hulugundi as

pillion rider on motorcycle Bearing registration No. KA-

46-E-4100 near Soladevarahalli on Hassan-Belur

Road, at that time, the rider of the bike rode the bike

in rash and negligent manner and dashed to the mini

lorry bearing No.KA-13-1893 coming in the opposite

direction in a rash and negligent manner and caused

head on collusion. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation to the tune of

Rs.10,00,000/- along with interest.

4. On service of summons, the respondents

appeared through their respective counsel and filed

written statements in which the averments made in

the petition were denied.

Respondent No.2, owner of lorry has pleaded

that the accident has occurred due to rash and

negligent riding of the motorcycle by the rider. The

claimants are independent and living with their

respective husbands. The claimants in collusion with

the police have filed complaint against the driver of

the lorry. The Hence, he sought for dismissal of the

petition.

Respondent No.3, rider of the motorcycle has

pleaded that accident has not occurred due to rash

and negligent riding of the motorcycle by the rider.

The motorcycle is insured with respondent No.4 and

respondent No.4 is liable to indemnify him. Hence, he

sought for dismissal of the petition.

Respondent No.4, insurer has pleaded that the

petition itself is false and frivolous in the eye of law.

It denies that the mini lorry as well as motorcycle was

insured with the respondent No.4. The driver of the

motorcycle did not possess valid driving licence as on

the date of the accident. The owner of lorry has not

produced insurance particulars. It was further pleaded

that the quantum of compensation claimed by the

claimants is exorbitant. Hence, he sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P8. On behalf of

respondents, neither any witness was examined nor

any document was produced. The Claims Tribunal, by

the impugned judgment, inter alia, held that the

accident took place on account of contributory

negligence as a result of which, the deceased

sustained injuries and succumbed to the injuries. The

Tribunal further held that the claimants are entitled to

a compensation of Rs.1,00,000/- along with interest

at the rate of 6% p.a. and directed the owner of lorry

and owner of motorcycle to deposit the compensation

amount along with interest at the rate of 60% and

40% respectively. Being aggrieved, this appeal has

been filed.

6. The learned counsel for the appellant-

owner of mini lorry has contended that the accident

has occurred solely due to rash and negligent riding of

the motorcycle by its rider. But the Tribunal has erred

in holding that the accident has occurred due to

contributory negligence and driver of the lorry has

contributed to the accident to the extent of 60%. Even

as per the spot mahazar and materials available on

record, the rider of the motorcycle was negligent in

riding the motorcycle and caused the accident.

Hence, he prays for allowing the appeal

7. The learned counsel for the respondent

Nos.1 to 5 are served and unrepresented.

8. The learned counsel for the Insurance

Company has contended that the lorry involved in the

accident was not insured and hence the Insurance

Company is not liable to pay compensation. Hence, he

prays for dismissal of the appeal.

9. Heard the learned counsel for the parties

and perused the records.

10. The case of the claimants is that on

22.3.2010, the deceased Taranath was coming to

their village Hulugundi as pillion rider on motorcycle

Bearing registration No. KA-46-E-4100 near

Soladevarahalli on Hassan-Belur Road, at that time,

the rider of the bike rode the bike in rash and

negligent manner and dashed to the mini lorry bearing

No.KA-13-1893 coming from the opposite direction in

a rash and negligent manner and caused head on

collusion. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries.

To prove the case, the claimants have examined

claimant No.1 as PW-1 and produced 8 documents.

Immediately after the accident, the complaint is

lodged against the driver of the mini lorry as per Ex.P-

2(a). It is very clear from the materials available on

record and the evidence of the parties that at the time

of the accident, the rider of the motorcycle was

coming behind the car and mini lorry was coming from

opposite direction with flashing head light in high

beam. The driver of the mini lorry, who was driving

his vehicle in high way is expected to bring down the

beam of light to low beam stage or use the dim and

dip facility when he saw the vehicle coming from

opposite direction. It appears that driver of the mini

lorry has not followed the mandatory procedure. So

also the rider of the motorcycle had an ample

opportunity to see the vehicle which is coming from

opposite direction and having noticed the big vehicle

coming from the opposite direction with high beam

light, he could have slowed down his vehicle speed

and took it to the left side or to safe place. Even the

rider had not following the precaution and tried to

control the speed. As could be seen from the

mahazar, the accident has occurred in straight road

and not a curve road. Both the rider of the bike and

driver of the mini lorry had occasion to see the vehicle

coming from thier respective opposite direction.

Despite of it, they have not taken any precaution in

controlling the speed. The accident has occurred due

to head on collusion.

Therefore, taking into consideration the evidence

of the parties and documents namely Ex.P-1 FIR,

Ex.P-2 complaint, Ex.P-5 spot mahazar, Ex.P-6 copy

of motor vehicles accident report, I am of the opinion

that the accident has occurred due to contributory

negligence. It is held that the rider of the motorcycle

has contributed to the accident to the extent of 50%

and the driver of the mini lorry has contributed to the

accident to the extent of 50%. Hence, the finding of

the Tribunal with regard to negligence is modified to

the said extent.

11. With regard to liability is concerned, since

both the vehicles involved in the accident were not

insured, the owner of motorcycle as well as owner of

lorry are directed to deposit the compensation amount

awarded by the Tribunal at the rate of 50% each

within a period of four weeks from the date of receipt

of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed-in-part.

Amount in deposit is ordered to be transferred to

the Tribunal.

Sd/-

JUDGE

DM